What’s the Legal Limit for DUI in SC?

Is there a legal limit for DUI in SC?

We all know that it’s against the law to drive while drunk and that the police decide who is drunk based on a breathalyzer test, right? Most people also know that the “legal limit” in SC is .08 on the breath test, right?

Or is it?

What many people don’t know is that there is no “legal limit” for DUI in SC. Although the breathalyzer results can be used as evidence against you to prove that you were under the influence, you are not automatically guilty if you blew a .08 or greater…

On the other hand, it can be said that DUAC, or driving with an unlawful alcohol concentration, has a “legal limit.” So, why don’t they charge people with DUAC more often?

There is no Legal Limit for DUI in SC

There is no legal limit for DUI in SC – if you are charged with driving under the influence and you take the breathalyzer test, the results might be used against you to prove that you were DUI, but you are not automatically guilty if you blow greater than a .08.

Elements of a DUI

What are the elements that the State has to prove in a DUI case? Believe it or not, “blew a .08 or greater” is not an element that the State must prove.

They must prove that you were:

  1. Driving – not sitting in the car listening to the radio or even sitting in the car passed out at the wheel,
  2. While intoxicated – this could mean intoxicated on alcohol, drugs, or both, and it could also mean prescription drugs that are taken as prescribed,
  3. To the extent that your faculties to drive were materially and appreciably impaired.

The “legal limit” for DUI in SC, then, is whatever amount of alcohol causes your faculties to drive to become materially and appreciably impaired

The State can prove this with a breathalyzer result, witness testimony, video evidence, field sobriety test results, or the officer’s observations.

There is No Legal Limit for DUI, but There are Inferences Based on the Breathalyzer Result

SC Code Section 56-5-2950 contains “inferences” that jurors can use based on the breathalyzer result:

(G) In the criminal prosecution for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 the alcohol concentration at the time of the test, as shown by chemical analysis of the person’s breath or other body fluids, gives rise to the following:

(1) if the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol;

(2) if the alcohol concentration was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other evidence in determining the guilt or innocence of the person; or

(3) if the alcohol concentration was at that time eight one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol.

If the breathalyzer result was .05 or less, it is conclusively presumed that you were not under the influence of alcohol (although the State may still be able to prove intoxication by other drugs). Conclusively presumed means you are not guilty – the case should not even go to a jury.

If the breathalyzer result was .08 or greater, it may be inferred that you were under the influence of alcohol, but it is not conclusively presumed. Because there is no “legal limit” for DUI, it does not matter if your blood alcohol content (BAC) was .08 or greater if your faculties to drive were not materially and appreciably impaired…

But there is a Legal Limit for DUAC in SC…

Driving with an unlawful alcohol concentration (DUAC), however, is different.

SC Code Section 56-5-2933 says “[i]t is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more.”

So, for a DUAC charge, there is a legal limit of .08. It doesn’t matter if your faculties to drive were impaired. It doesn’t matter if you were stone-cold sober. If the State proves that your blood alcohol content was .08 or greater, whether it is by a breathalyzer, urinalysis, or blood test, you can be found guilty of DUAC.

So, why don’t prosecutors always charge people with DUAC instead of DUI? We see more DUI charges than DUAC in Charleston, SC…

First, it’s because you can’t charge a person with DUAC unless there is a BAC test result.

Second, if the person did take a breath or blood test, the prosecutor may need to have expert testimony at trial about the testing process if the defendant challenges the result.

If a person is charged with DUAC and the breath or blood test results are excluded at trial, the State has no case – the DUAC will be dismissed because it is impossible to prove a person’s BAC without test results.

How do you Defend Against DUAC Charges if There is a Legal Limit of .08?

There are also a number of statutory defenses contained in SC’s DUAC statute – you can challenge:

(1) whether or not the person was lawfully arrested or detained;

(2) the period of time between arrest and testing;

(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and whether the:

(a) reported alcohol concentration at the time of testing was eight one-hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and

(d) machine was working properly.

You can also introduce evidence at trial that contradicts the test results, including:

(1) the results of any additional tests of the person’s breath or other bodily fluids;

(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

(a) evidence of field sobriety tests;

(b) evidence of the amount of alcohol consumed by the person; and

(c) evidence of the person’s driving;

(3) a video recording of the person’s conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or

(4) any other evidence of the state of a person’s faculties to drive which would call into question the results of a breath or bodily fluid test.

If the breathalyzer or blood test results say your BAC was .11, but the evidence you introduce at trial shows you were not intoxicated (and therefore the BAC results must have been wrong), a jury can still acquit you because the State has not proven their case beyond any reasonable doubt.

Questions About the Legal Limit in SC?

There is no legal limit for DUI in SC, although there is a “legal limit” of .08 for DUAC charges.

If you have been charged with driving under the influence (DUI), driving with an unlawful alcohol concentration (DUAC), or felony DUI in the Charleston, Georgetown, or Myrtle Beach areas of Eastern SC, call Charleston, SC DUI defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.


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